Kennedy v. People of the State of Colorado et al

Filing 32

ORDER Denying Application for Writ of Habeas Corpus by Judge William J. Martinez on 03/01/2016. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable William J. Martínez
Civil Action No. 15-cv-01062-WJM
JEREMIAH J. KENNEDY,
Applicant,
v.
COLORADO DEPARTMENT OF CORRECTIONS, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the second amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 9) (the “Second Am ended
Application”) filed pro se by Applicant Jeremiah J. Kennedy. Respondents have filed an
Answer (ECF No. 31) (“the Answer”) to the Second Amended Application. Mr. Kennedy
has not filed a traverse despite being given an opportunity to do so. After reviewing the
record, including the Second Amended Application, the Answer, and the state court
record, the Court FINDS and CONCLUDES that the Second Am ended Application
should be denied and the case dismissed with prejudice.
I. BACKGROUND
Mr. Kennedy is challenging the validity of his conviction and sentence in
Arapahoe County District Court case number 07CR2692. He was tried jointly with a codefendant and he was convicted of vehicular eluding, accessory to aggravated robbery,
and four habitual criminal counts. The Colorado Court of Appeals on direct appeal

described the relevant factual background as follows:
The victim parked his car and started walking to his
motel room. A man approached him in the parking lot and
asked if he had a lighter. When the victim pulled a lighter
put of his pocket, the man said, “[a]nd your wallet” and
pulled out a gun. The victim gave the robber $300. The
robber walked away quickly and got into the passenger side
of a blue truck. The truck sped off. The victim called 911.
After the police arrived, the victim and an officer drove
to look at an abandoned vehicle nearby, which the victim
identified as the truck the robber fled in. The officer drove
the victim to another location, where the victim identified a
suspect in custody, codefendant, as the robber.
In the meantime, a security guard who was working at
a nearby shopping center heard sirens from the police cars
in the area. As he scanned the perimeter of the shopping
center, he saw a truck drive through a red traffic light at a
high rate of speed. The truck passed him within a distance
of approximately 15-20 feet. The guard observed the driver,
but could not see the passenger clearly because of the
lighting in the area. The guard contacted the police officers,
who were also in pursuit of the truck, and helped them
search the area. A police officer drove the guard to the
parking lot of a high school where the police had taken
defendant into custody. This area was near the location of
the abandoned truck that the victim identified. The guard
identified defendant as the driver of the truck he had seen
speeding through the shopping center.
Defendant was charged with aggravated robbery,
conspiracy to commit aggravated robbery, first degree
aggravated motor vehicle theft, vehicular eluding, theft,
violent crime with a deadly weapon, and four habitual
criminal counts.
Defendant and codefendant were tried in a joint jury
trial. Defendant was convicted of vehicular eluding,
accessory to aggravated robbery, and four habitual criminal
counts. The trial court sentenced him to 12 years in the
Department of Corrections.
People v. Kennedy, No. 10CA1383, slip op. at 1-2 (Colo. App. Sept. 5, 2013)
2

(unpublished) (ECF No. 13-2 at 2-3). The judgment of conviction was affirmed on direct
appeal. See id. On May 19, 2014, the Colorado Supreme Court denied Mr. Kennedy’s
petition for writ of certiorari on direct appeal. (See ECF No. 13-6.)
The instant action was commenced on May 20, 2015, and the Court has
determined that, construing the Second Amended Application liberally, Mr. Kennedy is
asserting five claims for relief. He specifically contends the trial court erred in denying
his motion to sever his case from that of his co-defendant, which precluded him from
introducing exculpatory evidence (claim one); the trial court erred in failing to suppress
testimony regarding an out-of-court identification that was unduly prejudicial (claim two);
the trial court erred in denying a motion for mistrial based on witness testimony that
violated his Fifth Amendment rights (claim three); there was insufficient evidence to
convict him of vehicular eluding and accessory to aggravated robbery (claim four); and
the trial court erred in failing to give a requested jury instruction regarding eyewitness
identifications (claim five). The Court previously entered an Order to Dismiss in Part
(ECF No. 24) dismissing claims one and five because those claims are unexhausted
and procedurally barred. Therefore, only claims two, three, and four in the Second
Amended Application remain to be considered on the merits.
II. STANDARDS OF REVIEW
The Court must construe the Second Amended Application liberally because Mr.
Kennedy is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10 th Cir. 1991).
However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d
at 1110.
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Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Mr. Kennedy bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The Court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10 th Cir.
2003). The threshold question the Court must answer under § 2254(d)(1) is whether
Mr. Kennedy seeks to apply a rule of law that was clearly established by the Supreme
Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362,
390 (2000). Clearly established federal law “refers to the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings
in cases where the facts are at least closely-related or
similar to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10 th Cir. 2008). If there is no clearly established
federal law, that is the end of the Court’s inquiry under § 2254(d)(1). See id. at 1018.
4

If a clearly established rule of federal law is implicated, the Court must determine
whether the state court’s decision was contrary to or an unreasonable application of
that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly
established federal law if: (a) “the state court applies a rule
that contradicts the governing law set forth in Supreme Court
cases”; or (b) “the state court confronts a set of facts that are
materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from
[that] precedent.” Maynard [v. Boone], 468 F.3d [665,] 669
[(10th Cir. 2006)] (internal quotation marks and brackets
omitted) (quoting Williams, 529 U.S. at 405). “The word
‘contrary’ is commonly understood to mean ‘diametrically
different,’ ‘opposite in character or nature,’ or ‘mutually
opposed.’” Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable
application of clearly established federal law when it
identifies the correct governing legal rule from Supreme
Court cases, but unreasonably applies it to the facts. Id. at
407-08.
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judg ment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A]
decision is ‘objectively unreasonable’ when most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law.”
Maynard, 468 F.3d at 671. Furthermore,
[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
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the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations. [I]t is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation
omitted). In conducting this analysis, the Court “must determine what arguments or
theories supported or . . . could have supported[] the state court’s decision” and then
“ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of [the Supreme] Court.”
Id. at 102. In addition, “review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 180-81 (2011).
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also
Richter, 562 U.S. at 102 (stating “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable”).
As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.
Richter, 562 U.S. at 103.
The Court reviews claims of factual errors pursuant to 28 U.S.C. § 2254(d)(2).
See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10 th Cir. 2002). Section 2254(d)(2)
allows the Court to grant a writ of habeas corpus only if the relevant state court decision
6

was based on an unreasonable determination of the facts in light of the evidence
presented to the state court. Pursuant to § 2254(e)(1), the Court m ust presume that the
state court’s factual determinations are correct and Mr. Kennedy bears the burden of
rebutting the presumption by clear and convincing evidence. “The standard is
demanding but not insatiable . . . [because] ‘[d]ef erence does not by definition preclude
relief.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537
U.S. 322, 340 (2003)).
Finally, the Court’s analysis is not complete “[e]ven if the state court decision
was contrary to, or involved an unreasonable application of, clearly established federal
law.” Bland v. Sirmons, 459 F.3d 999, 1009 (10 th Cir. 2006). “Unless the error is a
structural defect in the trial that defies harmless-error analysis, [the Court] must apply
the harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . .” Id.;
see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must
conduct harmless error analysis under Brecht anytime it finds constitutional error in a
state court proceeding regardless of whether the state court found error or conducted
harmless error review). Under Brecht, a constitutional error does not warrant habeas
relief unless the Court concludes it “had substantial and injurious ef fect” on the jury’s
verdict. Brecht, 507 U.S. at 637. “A ‘substantial and injurious ef fect’ exists when the
court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.”
Bland, 459 F.3d at 1009 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). “Grave
doubt” exists when “the matter is so evenly balanced that [the Court is] in virtual
equipoise as to the harmlessness of the error.” O’Neal, 513 U.S. at 435. The Court
makes this harmless error determination based upon a review of the entire state court
7

record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10 th Cir. 2000).
If a claim was not adjudicated on the merits in state court, and if the claim also is
not procedurally barred, the Court must review the claim de novo and the deferential
standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10 th
Cir. 2004).
III. MERITS OF REMAINING CLAIMS
A. Claim Two
Mr. Kennedy contends in claim two that the trial court erred in failing to suppress
testimony regarding an out-of-court identification that was unduly prejudicial. The outof-court identification at issue was made by the security guard who observed Mr.
Kennedy driving the getaway vehicle. According to Mr. Kennedy, the security guard’s
opportunity to observe the driver was so fleeting that the subsequent field identification
more than one hour later, in which Mr. Kennedy was the only suspect, was shown
handcuffed, and was shown with a flashlight illuminating his face was impermissibly
suggestive and inherently prejudicial.
In this context, “due process concerns arise only when law enforcement officers
use an identification procedure that is both suggestive and unnecessary.” Perry v. New
Hampshire, 132 S. Ct. 716, 724 (2012) (summarizing relevant standards clearly
established in prior Supreme Court decisions). Furthermore, even if law enforcement
officers use a suggestive and unnecessary identification procedure, the resulting
identification need not be suppressed unless, based on the totality of the
circumstances, “improper police conduct created a substantial likelihood of

8

misidentification.” Id. at 724-25 (internal quotation marks omitted). The Supreme Court
has identified the following five factors that courts must consider to determine whether a
particular identification procedure created a substantial likelihood of misidentification:
the opportunity of the witness to view the criminal at the time
of the crime, the witness’ degree of attention, the accuracy
of the witness’ prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation,
and the length of time between the crime and the
confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
The Colorado Court of Appeals on direct appeal applied this clearly established
law and reasoned as follows in rejecting the claim:
Defendant argues that the security guard’s out-ofcourt identification of him should have been suppressed
because it was unreliable. We disagree.
A defendant is denied due process when the jury
hears evidence of a witness’s unreliable identification of the
defendant as the perpetrator. See People v. Borghesi, 66
P.3d 93, 103 (Colo. 2003). W e review the constitutionality of
a pretrial identification procedure as a mixed question of law
and fact. Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).
We defer to the trial court’s findings of fact, but “we may
afford different weight to those facts and reach a different
conclusion in light of the legal standard.” Borghesi, 66 P.3d
at 104.
We consider the totality of the evidence to determine
whether a particular identification procedure was so
suggestive as to render unreliable any resulting
identification. See People v. Weller, 679 P.2d 1077, 1083
(Colo. 1984); People v. Walker, 666 P.2d 113, 119 (Colo.
1983). The question is whether the identification was
unreliable because the pretrial procedure was unduly and
irreparably suggestive, or whether the identification was
reliable (despite any suggestive procedures) because it was
based on the witness’s independent observations of the
defendant during the commission of the crime. See Walker,
9

666 P.2d at 119; People v. Mascarenas, 666 P.2d 101, 109
(Colo. 1983). Factors to consider in this inquiry include “(1)
the opportunity of the witness to view the criminal at the time
of the crime; (2) the witness’[s] degree of attention; (3) the
accuracy of the prior description of the criminal; (4) the level
of certainty demonstrated at the confrontation; and (5) the
time between the crime and the confrontation.” Weller, 679
P.2d at 1083 (citing People v. Smith, 620 P.2d 232, 238
(Colo. 1980)).
Here, defendant moved to suppress all evidence
resulting from the security guard’s identification of him in a
one-on-one show-up as the driver of the getaway truck from
the robbery. While one-on-one show-ups are viewed with
disfavor, they are not per se violations of due process.
Mascarenas, 666 P.2d at 109. A one-on-one show-up, or
witness identification at the scene of a crime or a suspect’s
detention, may be justified “where immediate identification
would facilitate an ongoing criminal investigation” and the
police must determine whether they need to continue
searching for a suspect. Id.
After hearing argument on defendant’s motion and
testimony from the guard at a pretrial hearing, the trial court
made the following factual findings: (1) When the guard saw
the truck at the mall parking lot, the area was “fairly well-lit
with streetlights;” (2) The guard could see partially inside the
truck, and he saw the occupants of the truck for one or two
seconds; (3) He saw the driver’s face and profile from
approximately five to 15 yards away; (4) The guard
described the driver as a white male in his late 20s to early
30s with either no hair or short hair, and either no facial hair
or short facial hair; and (5) The guard believed the driver
may have had a tattoo on the left side of his neck.
Upon arrival at the location where defendant was
detained, the police officer instructed the guard to answer
“yes or no” as to whether he could identify defendant. The
officer told the guard to make an identification only if he was
100 percent sure. The officer drove at a speed of roughly
five miles per hour within four or five feet of the suspect, who
was seated in a car. [footnote 1] The officer illuminated
defendant’s face with a flashlight, and the guard had roughly
10 to 25 seconds to observe defendant. Streetlights also lit
the area. The guard identified defendant as the driver of the
10

truck he had seen earlier, and the guard was 90 to 95
percent sure of the identification. The identification occurred
approximately one hour to one-and-a-half hours after the
guard initially saw the truck.
[footnote 1: The testimony differed on whether
defendant was inside or outside the car during
the identification, but the trial court found that
he was inside the car.]
The trial court found that the police needed to
conduct the show-up in order to determine if defendant, who
had been apprehended, was actually involved in the
robbery.
Assuming, without deciding, that the identification
procedure here was suggestive, we do not believe it resulted
in a “very substantial likelihood of misidentification,”
considering the totality of the circumstances. See Borghesi,
66 P.3d at 104. We agree with the trial court that here, as in
Mascarenas, the police needed to make an immediate
identification of defendant to determine whether they had
apprehended an innocent party or the correct suspect in a
reported armed robbery. See 666 P.2d at 109.
Further, the guard had adequate opportunity to
observe the driver of the get-away truck, who was driving
through a well-lit area approximately five to 15 yards away
from the guard. The guard testified that he noticed the high
speed of the truck, heard police sirens, and focused his
attention on the vehicle and the driver because he was trying
to take in as much information as he could. His description
of defendant was accurate; while defendant did not have a
tattoo on his neck, the guard merely said he “may” have
seen a tattoo. The guard had a high degree of certainty
when he identified defendant and was instructed by police
only to make an identification if he was certain. The time
elapsed between the guard’s initial encounter with the driver
and the identification, while possibly over an hour, was not
excessively long. Considering the totality of the
circumstances, we conclude the trial court did not err in
admitting the guard’s identification testimony. Even if the
identification procedure employed was suggestive, the
guard’s identification of defendant was based on the guard’s
independent observations of defendant while fleeing the
11

scene of the robbery. See Walker, 666 P.2d at 120 (in
evaluating circumstances surrounding one-on-one show-up,
appellate court should defer to trial court’s superior ability to
weigh the evidence and credibility of witnesses, especially
where evidence is conflicting); People v. Young, 923 P.2d
145, 151 (Colo. App. 1995) (upholding admissibility of
identification where witness identified defendant after driving
by him in a police car).
(ECF No. 13-2 at 7-12.)
Mr. Kennedy does not contend that the decision of the Colorado Court of
Appeals is contrary to clearly established federal law. In other words, he does not cite
any contradictory governing law set forth in Supreme Court cases or any materially
indistinguishable Supreme Court decision that would compel a different result in his
case. See House, 527 F.3d at 1018.
Mr. Kennedy also fails to demonstrate the state court’s ruling was based on an
unreasonable determination of the facts. He does not identify any clear and convincing
evidence to rebut the presumption of correctness that attaches to the state court’s
factual findings. Although there was contradictory testimony regarding whether Mr.
Kennedy was seated in a police car or standing next to the police car when the security
guard identified him as the driver, the trial court’s resolution of the disputed testimony
was not unreasonable.
Finally, Mr. Kennedy fails to demonstrate the state court’s ruling is an
unreasonable application of clearly established federal law. The state court applied the
five relevant factor identified by the Supreme Court and reasonably concluded there
was not a substantial likelihood of misidentification. Ultimately, Mr. Kennedy fails to
demonstrate the state court’s determination “was so lacking in justification that there
12

was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Richter, 562 U.S. at 103. Therefore, Mr. Kennedy is not
entitled to relief with respect to claim two.
B. Claim Three
Mr. Kennedy contends in claim three that the trial court erred in denying a motion
for mistrial based on witness testimony that violated his Fifth Amendment rights.
According to Mr. Kennedy, a law enforcement witness repeatedly testified that
photographs of Mr. Kennedy introduced at trial were taken in the interview room, which
left the jury to speculate as to what Mr. Kennedy said to the officer in the interview
room.
The Colorado Court of Appeals reasoned as follows in rejecting this claim for
relief:
Defendant contends the trial court erred when it
denied his motion for a mistrial based on a police officer’s
testimony regarding defendant’s earlier detention in an
“interview room.” According to defendant, this testimony
“raise[d] the specter of evidence being withheld from the
jury” because it suggested that he divulged information in an
interview that the jury did not hear. We are not persuaded.
Because a mistrial is the most drastic of remedies, it
is warranted only where the prejudice to the defendant is too
substantial to be remedied by other means. E.g., People v.
Collins, 730 P.2d 293, 303 (Colo. 1986). W hen a defendant
claims that a trial court’s denial of his or her motion for a
mistrial constitutes a violation of his or her constitutional
rights, we must first determine whether an error occurred
based on the totality of the circumstances. People v.
Santana, 255 P.3d 1126, 1130 (Colo. 2011). If we find no
constitutional violation, the decision to deny the mistrial is
reviewed for abuse of discretion and will not be disturbed
absent a clear showing of abuse of discretion and prejudice
to the defendant. Id.
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Here, the prosecutor asked the officer if, in the course
of his investigation, he “[met] with each suspect.” The officer
responded that he did. Defense counsel objected to the line
of questioning because it implicated defendant’s Fifth
Amendment right to remain silent upon meeting with the
officers – despite the fact that defendant here did not remain
silent (instead, he gave statements to police). The
prosecutor argued that he was trying to introduce a photo
exhibit depicting defendant as he appeared during the
meeting with police at headquarters on the night he was
arrested. The trial court instructed the prosecutor to inquire
“did you see him that night, does this look like he looked that
night, period.” The court further warned the prosecutor not
to “get into where [defendant] is sitting and what is going on
because the jury is left to think, oh, well, an interview is
about to take place and that infringes on this man’s Fifth
Amendment right.”
When the prosecutor showed the officer the exhibit
and asked him what he recognized in the photo, the officer
testified that the photo depicted defendant in “our interview
room.” Defense counsel immediately objected. The
prosecutor noted that he had informed the officer not to
discuss any interviews with defendant. The prosecutor
noted that he should have specifically admonished the
officer not to mention the term “interview room,” or in any
way address whether defendant had been interviewed. The
trial court agreed, stating:
[e]verytime you say interview room, you are
setting up for the jury to think you will be talking
about the interview and that’s an absolute
violation of these defendants’ Fifth Amendment
right to remain silent. Do not say that again. . .
. So no more discussion about an opportunity
to speak with these guys, interview, interview
room. No more, no more of that.
Defendant moved for a mistrial based on the
cumulative effect on the jury of testimony that defendant was
in some sort of interview room, and the implication that
evidence of the interview was being withheld from the jury.
After hearing argument from counsel, the trial court noted
that defendant made some self-serving statements at the
police station that the People did not intend to introduce.
14

The court suggested it would be an adequate remedy to
allow defendant to introduce the statements he gave the
police that evening if he wished to do so. Defendant
declined on the ground that the interview included a mix of
inculpatory and exculpatory statements.
The trial court ruled that a mistrial was a drastic
remedy and it did not belief that level had been reached.
The court concluded that the photos the prosecution w ished
to introduce did not appear to be overly prejudicial, and
there did not seem to be a cumulative effect from comments
regarding defendant’s presence in the interview room. The
trial court offered to issue a curative instruction regarding
defendant’s right to remain silent. Defendant declined the
curative instruction on the ground that it could draw more
attention to the issue of the interview.
Ultimately, the court permitted defendant to crossexamine the officer regarding defendant’s exculpatory
statements (in the interview room) explaining why he was
out that night and the officer’s description of defendant’s
confusion about being in custody. The trial court prohibited
the prosecutor from inquiring further into the rest of the
interview; specifically, the court prevented the prosecutor
from asking about defendant’s potentially inculpatory
statements or his appearance in the interview room.
The officer’s reference to defendant’s presence in an
interview room was brief. While the prosecutor’s questioning
could have been more sharply honed to avoid any reference
to an interview, both the prosecutor and the officer heeded
the trial court’s admonishment to avoid any further reference
after defendant’s objection. Also, defendant declined a
curative instruction. Cf. People v. Shreck, 107 P.3d 1048,
1060 (Colo. App. 2004) (no abuse of discretion in denial of
mistrial where defendant declined the trial court’s offer of a
curative instruction regarding the prosecutor’s brief
reference to defendant’s uncharged crimes, which was not
repeated). Further, the trial court crafted a curative remedy
permitting defendant to question the officer regarding
defendant’s exculpatory statements about his whereabouts
on the evening of the robbery, and prohibiting the prosecutor
from questioning the officer regarding inculpatory details the
officer observed during the interview.

15

In short, the jury heard evidence of defendant’s
statements made in the interview room, and those
statements were exculpatory. Thus, contrary to defendant’s
contention, this questioning did not raise the specter of
evidence being withheld from the jury. Moreover, the
officer’s testimony, considered in its entirety, was not a
comment on defendant’s alleged silence in the interview
room. Rather, the testimony revealed defendant’s
statements made in the interview room, which (as far as the
jury heard) were exculpatory. Accordingly, the trial court did
not abuse its discretion when it denied defendant’s motion
for a mistrial.
(ECF No. 13-2 at 12-17.)
Mr. Kennedy does not contend that the state court’s adjudication of claim three
resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented. See 28 U.S.C. § 2254(d)(2).
He also fails to demonstrate that the state court’s adjudication of claim three was
contrary to, or an unreasonable application of, clearly established federal law under §
2254(d)(1). In fact, Mr. Kennedy does not identify any clearly established federal law
implicated by the facts alleged in support of claim three. As noted above, “clearly
established law consists of Supreme Court holdings in cases where the facts are at
least closely-related or similar to the case sub judice” and the absence of any clearly
established federal law ends the Court’s inquiry under § 2254(d)(1). House, 527 F.3d
at 1016, 1018.
In any event, even assuming the existence of a constitutional error under the
deferential standards of § 2254(d), the Court is convinced, based on a review of the
entire state court record, that Mr. Kennedy cannot demonstrate the alleged error was
prejudicial under Brecht. Most importantly, and as noted by the Colorado Court of
16

Appeals in the excerpt quoted above, the trial court crafted a curative remedy that
allowed Mr. Kennedy to present his exculpatory statements to the jury without mention
of any inculpatory statements. Under these circumstances, Mr. Kennedy cannot
demonstrate that the alleged error “had substantial and injurious effect” on the jury’s
verdict. Brecht, 507 U.S. at 637. Therefore, Mr. Kennedy is not entitled to relief with
respect to claim three.
C. Claim Four
Mr. Kennedy contends in claim four that there was insufficient evidence to
convict him of vehicular eluding and accessory to aggravated robbery. According to Mr.
Kennedy, the primary evidence linking him to the crimes in question, the security
guard’s fleeting glimpse of the driver of a speeding truck, was insufficient to establish
his guilt beyond a reasonable doubt in light of other evidence that his co-defendant was
the actual robber, his co-defendant was apprehended with the stolen money and a
handgun, and his co-defendant made statements that he committed the robbery by
himself.
The proper standard for sufficiency of the evidence, which was clearly
established when Mr. Kennedy was convicted, is set forth in Jackson v. Virginia, 443
U.S. 307 (1979). In Jackson the Supreme Court held that “the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. at 319. “This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.
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“Under Jackson, federal courts must look to state law for ‘the substantive elements of
the criminal offense,’ but the minimum amount of evidence that the Due Process
Clause requires to prove the offense is purely a matter of federal law.” Coleman v.
Johnson, 132 S. Ct. 2060, 2064 (2012) (per curiam) (quoting Jackson, 443 U.S. at 324,
n.16). To the extent an insufficient evidence claim involves an interpretation of state
law, the state court’s interpretation “binds a federal court sitting in habeas corpus.”
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). “Sufficiency of the evidence
is a mixed question of law and fact.” Maynard, 468 F.3d at 673. The Court must apply
both § 2254(d)(1) and (d)(2) and “ask whether the facts are correct and whether the law
was properly applied to the facts.” Id.
The Colorado Court of Appeals applied this clearly established federal law in
rejecting Mr. Kennedy’s insufficient evidence claim.
When reviewing a challenge for sufficiency of the
evidence, we must determine whether the evidence
presented, viewed in the light most favorable to the
prosecution, was substantial and sufficient to support the
defendant’s guilt beyond a reasonable doubt. Dempsey v.
People, 117 P.3d 800, 807 (Colo. 2005). W e review such a
claim de novo. Id.
“A person is an accessory to a crime if, with intent to
hinder, delay, or prevent the discovery, detection,
apprehension, prosecution, conviction, or punishment of
another for the commission of a crime, he renders
assistance to such person.” § 18-8-105(1), C.R.S. 2012.
Rendering assistance includes, as relevant here, harboring
or concealing another who has committed a crime, or
providing such a person with transportation. § 18-8105(2)(a), (c), C.R.S. 2012.
Here, the evidence showed that the victim saw
codefendant get into the passenger side of a blue truck.
The truck then sped away. The security guard identified
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defendant as the driver of a blue truck, matching the
description given by the victim, speeding through the parking
lot of a nearby shopping center. Further, DNA evidence was
found on the truck’s steering wheel. Testing revealed that,
while 99.995 percent of the population could be excluded as
contributors of the DNA, defendant could not be excluded as
a contributor; thus, it was extremely likely that defendant’s
DNA was on the steering wheel of the truck. Police found
defendant hiding behind a tree near the abandoned blue
truck.
Accordingly, considering all of the evidence in the
light most favorable to the prosecution, we conclude that
substantial and sufficient evidence was presented to show
that defendant provided codefendant with transportation and
was an accessory to robbery.
(Docket No. 13-2 at 18-19.)
Mr. Kennedy does not contend that the decision of the Colorado Court of
Appeals is contrary to Jackson. He does not cite any contradictory governing law set
forth in Supreme Court cases or any materially indistinguishable Supreme Court
decision that would compel a different result in his case. See House, 527 F.3d at 1018.
Mr. Kennedy also fails to demonstrate the state court’s ruling was based on an
unreasonable determination of the facts or is an unreasonable application of Jackson.
He does not present any clear and convincing evidence to rebut the state court’s factual
findings as set forth in the excerpt quoted above and he fails to demonstrate the state
court ruling “was so insupportable as to fall below the threshold of bare rationality”
required under Jackson. Coleman, 132 S. Ct. at 2065. Mr. Kennedy’s attempt to
downplay the significance of the witness identification testimony is not persuasive and
he completely ignores the DNA evidence found on the steering wheel of the getaway
vehicle in challenging the sufficiency of the evidence supporting his convictions.
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Ultimately, the Court’s review of the state court record confirms that the state
court’s rejection of claim four “was [not] so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103. Therefore, Mr. Kennedy is not entitled to
relief with respect to claim four.
V. CONCLUSION
In summary, the Court finds that Mr. Kennedy is not entitled to relief on any of
his remaining claims in the Second Amended Application. Accordingly, it is
ORDERED that the second amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 9) is denied and this case is dism issed with
prejudice. It is further
ORDERED that there is no basis on which to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c). It is further
ORDERED party shall bear their own attorney’s fees and costs.
Dated this 29th day of February, 2016.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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